a weblog dedicated to the clarification of copyright law for legislators and citizens alike

By popular demand (Denise), I've made T-shirts with the copyright clause from the US constitution (used as the background for this site) on - see the right sidebar (or scroll down to the bottom if your browser is ancient and doesn't grok CSS).

Thank you to all who have signed the letter I will deliver to Attorney General Ashcroft and CC to various members of congress and the senate. Thanks especially to those who helped in setting up the means by which hundreds of signatures have been aggregated and continue to be added, Darryl Ballantyne, Bill Evans, and thank you to Ellen Stroud who helped me clear my mind to crystallize the final draft, now posted below.

Liberty now.

ROQ -----------------------------

The Honorable John Ashcroft
Attorney General of the United States
Department of Justice
950 Pennsylvania Avenue,
NW Washington, DC 20530

Dear Attorney General Ashcroft:

We are artists, technologists, scholars and consumers…individuals on the Internet, united by the human will and the common bonds of friendship. Through the simplest desire to seek knowledge, to communicate thoughts ranging from humble to grand and from the absurd to the majestic; we unite daily through this remarkable network, Americans joined with people from all over the Earth. Strong in hope, with faith in freedom and democracy, we share a common connection extending far beyond our physical presence.

We speak as one.

Today, we write to urge the United States Department of Justice to see through the transparent pleas of multinational entertainment conglomerates that beg the Department to "vigilantly enforce the institution of copyright". It is our contention that these businesses have re-defined this key clause of the Constitution through passage of questionable law and now are seeking to exert a disproportionate control over global media by that convenient re-wording. We call on you to protect the future of the global Internet; some would say the future of human consciousness that hangs in the balance as you decide to marshal your forces, for or against it.

To wit, the US Constitution, in Article I, § 8, clause 8, states that:

"The Congress shall have power… To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries…"

And the US Constitution, in Article I, § 8, clause 18, states that:

"The Congress shall have power… To make all laws which shall be necessary and proper for carrying into execution the foregoing…."

Before there was the option of a global Internet, entertainment businesses controlled the stage for musical, television and cinematic arts. By controlling the movement of cultural products through both creative and distribution gateways, prices could be established and charged to the consumer whose choice was limited to the availability provided through retail mediums. The multinational conglomerates owned the means of duplication, promotion, and distribution. They metered those flows to draw the highest profitability, thus established ownership, for all intents and purposes, of society’s cultural heritage. The formula for maintaining maximum earnings dictates limited availability of product, therefore, consciously or unconsciously, entertainment industries had, in effect, (and continue to have) an interest in actually slowing the advance of science and the useful arts.

Nowhere is this more clearly illustrated than in the contrast between traditional media and the Internet. With the Internet's advent, an entirely new form of thinking has come into being. The far-reaching and chaotic network, instantly on and unable to be controlled, has become a bedrock communications foundation that works on principles exactly opposite to traditional market forces of entertainment business. In place of exclusivity, the Internet is about including any willing participant. Its media and promotion filters from the downside up, where entertainment’s world works upside down. Traditional entertainment businesses require much more money to control media, whereas on the Internet anybody with a PC has a voice limited only by self-initiative.

The natural result has been a watershed of independent thought. People communicate one-to-one, as well as one-to-many and many-to-one. The dialog takes place across borders, up and down society’s ladder and right to left across humanity’s broad horizon. The topics of conversation are widely diverse and far-reaching. The use of media is random and uncontrollable. It is about human communication, emotion expressed through the sharing of words and such artifacts as pictures, movies and music. Thought is shared globally and it is in the sharing that the greatest pleasure is felt.

Try doing that with a CD.

Unlike the interaction with culture controlled by traditional entertainment businesses, society’s culture on the Internet is a two way street. More artists find a way to those who appreciate their work than could ever be accommodated through the method of branding elite names as employed by the vastly more expensive promotional machinery of traditional entertainment companies. On the Internet, artist and consumer share a voice in the evolution of art, whether they are active distributors, eager recipients, or both. Thoughts are shared, ideas are born, and it is inevitable that people look to cultural artifacts to establish the basis for commonality.

Businesses that manufacture traditional entertainment artifacts like CDs and videos are correctly perceived to move more slowly, be more expensive, and be less able to meet the needs of diverse audiences who have been matured by Internet communications. If traditional entertainment businesses are to survive, they must accommodate the increased speed and diminished cost with which society now thinks, communicates, and shares its culture. Traditional entertainment business cannot afford to continue ignoring the future, focused on delivering one-directional, one-dimensional products, copy-protected against the consumer’s will to use and re-use it.

This is especially true because the tools of production, promotion, and distribution have spread everywhere as media of every imaginable kind has been converted to digital formats. If individuals don’t create their own tools, they can find them offered by those who do, throughout the network. By employing these tools, all art can be transformed to light. These tools enable "massive thought", shared by millions, that moves at the speed of light, as if light were thought’s substance… and so it is, light and vibration in myriad rhythms, cadences that rise and fall with the human heartbeat. In the expansively brilliant dialog that ensues, the consumer, is a willing participant in culture’s constant recreation. Ordinary people become the impetus of extraordinary cultural development. Whereas, before, consumers were fed their culture, through the Internet they are one with, and unable to be separated from, the tools of art’s free expression.

It’s not surprising that entertainment, the shimmering mirror of human existence, changes in this environment and, especially, does the economics of show business change. These formulas are altered, if for no other reason than that show business becomes a smaller part of thinking, because whole artifacts can be easily shared, almost as easily as random thought bounces through the ether. Where before it took a trip to a store to get a record or a video, now the pictures and sounds are on the kitchen table, in the study, or anywhere a wireless connection can be made in the wide open spaces of any metropolis. Since the sum of all thought, inseparable from the whole community, is valued more than the value of any one business (including show business or its artifacts), entertainment is challenged as never before to join in the dance or squander the value of its traditions, endangering its future existence.

Copyright and its attendant fair uses change, too, as the free flow of information and expression expands. For entertainment businesses unable to tolerate a consumer so empowered, the face of freedom becomes a fearful thing. Traditional entertainment businesses who are unable to become a part of human culture moving at the speed of light, feel compelled to implement stultifying "copy protections" in order to slow down and constrain the marketplace of free ideas. Failing in this, they seek to change the law, as quickly as they can… if possible before the future arrives.

It is true, however, that law hastily made is bad law and, unfortunately, there is no law against bad law, so long as it is law. This is why it is so important that you hear us, today, and let us be clear:

No one can hope, seriously, to own the Internet. However, businesses will flourish as they learn to lead by getting out of the way and, for entertainment, the ability to derive income will fall to those who develop compelling tools and methods that guide and assist a global population in accessing its universal heritage of cultural artifacts. Just as surely, traditional entertainment businesses that distance themselves from so participating will hasten their own demise. For these hapless enterprises, the larger the Internet expands in its power to exchange ideas and cultural artifacts, the smaller becomes their thinking. The seeds of their doom are planted in their desire to control what will not be controlled.

Yet, we trust that Democracy is a creation of the People, by the People, and for the People; that whosoever justly serves the People shall be fairly rewarded.

As you are surely aware, there is, today, a bill that represents an exactly opposite agenda. It is proposed by Representative Howard Berman (D-CA), that would allow copyright owners (anyone so calling themselves) to engage with impunity in otherwise illegal activities that include "disabling, interfering with, blocking, diverting, or otherwise impairing" the "unauthorized" distribution of copyrighted items. This proposed legislation would ultimately allow entertainment industry hackers to enter the private computers of consumers suspected of "possessing" copyrighted works.

Whether or not this bill contains the complicated wording that ostensibly protects the public from unreasonable search and seizure, it raises a host of liability issues and declares open season for activities heretofore considered illegal. How far will the entertainment oligarchy go in the misguided pursuit of protecting its self interests at the expense of the People? How far will legislators go in order to aggregate campaign contributions?

Clearly, the Digital Millennium Copyright Act was ill conceived when passed in 1998. The DMCA failed in its grasp of the meaning of that which it proposed to control. It is, after all, what gives the Berman bill its legal basis. In hindsight, the only benefactors of this faulty legislation are the entertainment monopolies that paid for it. And, true to form, with respect to the Berman bill, bad law is begetting worse law.

We implore you to acknowledge that the Department of Justice cannot reasonably be a party to such tyranny. Please ignore the hollow pleas of selfish money interests in these matters. Turn your important attention, instead, to issues that affect us all. Focus on the security of our homeland and the protection of allies of freedom and democracy everywhere. Endeavor against evil, against greed and the corporate overlords who threaten freedom, indeed our nation's democracy, by their manipulation of defective law to dominate the People.

This Bill is remarkable, in that it gives 'copyright owners' immunity from prosecution if they try to block access to a computer that they believe holds their work. They are not supposed to cause more than $50 worth of damage, but anyone affected can only appeal to the Attorney General (no other court apparently) if $250 worth of damage is caused.
Now, anyone who has ever written anything is a copyright owner under the terms of this bill, and the definition of 'a peer to peer network' covers every form of server on the internet, including webservers.